California Supreme Court holds oral argument on Proposition 66


When the lawsuit against Proposition 66 was filed the day after it passed last November, plaintiffs Ron Briggs and the late John Van de Kamp challenged its constitutionality. Initially, the Supreme Court denied the stay until the election results were certified, allowing Briggs and Van de Kamp to amend the petition after certification. On December 19th, they filed again. As a result, the California Supreme Court stayed implementation of the initiative on December 20.

On Tuesday, the Court held oral argument on the lawsuit at its courthouse in Los Angeles.

Prop 66 has four main provisions. It would require that all state proceedings be completed in five years; force lawyers without capital experience to take capital cases whenever there is a “backlog”; transfer habeas corpus petitions from the California Supreme Court back to the sentencing court; and limit the sentencing court’s time for deciding these cases and prisoners’ ability to appeal the court’s findings.

Of these four, the justices seemed to take aim at the five-year time limit, expressing disbelief that the appeals process could be completed in such a short period of time. When Deputy Attorney General Jose Zelidon-Zepeda described the limit as “aspirational” with “no consequence” if it weren’t met, Justice Leondra Kruger asked, “So a mandatory deadline that is toothless?”

However, when Christina Von de Ahe Rayburn, whose firm, Orrick, Herrington & Sutcliffe filed the lawsuit on behalf of Briggs and Van de Kamp, insisted that the five-year time limit was “very mandatory” and likely a reason many people voted for it, Justice Goodwin Liu, who had sharply questioned proponents about its practicality, said the fact that proponents were so willing to concede that it was flexible removed one of her central arguments.

What was surprising was the justices’ lack of questioning about the proposition’s violation of the single-subject rule, which requires that a proposition can change only one subject under an initiative. Prop 66 changes many things, including attempting to speed up executions, dictating the time and manner of how the courts handle cases, changing the rules regarding restitution, as well as the rules about when and where habeas petitions can be filed and heard by the courts.

And, the justices did not question the issue of the state’s lethal injection protocol. Under Prop 66, the protocol would be taken away from the oversight of the Administrative Procedure Act, a state agency that provides oversight and monitors compliance. This provision “would allow the California Department of Corrections and Rehabilitation to kill in any manner and with any drugs,” says DPF board member, and death penalty attorney Aundre Herron. (Herron wrote a comprehensive critique of Prop 66 in our March issue of the Focus.)

The Court will issue its ruling within 90 days.


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